S Barry v South Central Ambulance Service NHS Foundation Trust: 3309711/2023

EMPLOYMENT TRIBUNALS

Case No 3309711/2023

Between

In personClaimant

Mr Declan O’Dempsey, CounselRespondent

Before

Employment Judge de Silva KC, Mr A Hayes, Ms S Jenkins

In person for claimant

Mr Declan O’Dempsey (instructed by Counsel) for respondent

Date 20 February 2026

JUDGMENT

The judgment of the Employment Tribunal is as follows:

[1]The Claimant’s complaint of unfair dismissal pursuant to section 98 of the Employment Rights Act 1996 is dismissed.

[2]The Claimant’s complaint of direct age discrimination pursuant to sections 13 and 39 of the Equality Act 2010 is dismissed.

[3]The Claimant’s complaint of direct sexual orientation discrimination pursuant to sections 13 and 39 of the Equality Act 2010 is dismissed.

REASONS

[1]By Claim Form presented on 11 August 2023, the Claimant made claims of unfair dismissal, direct discrimination because of age and direct discrimination because of sexual orientation. In its Response dated 9 October 2023, the Respondent denied these claims.

[2]On 17 January 2024, a Case Management Preliminary Hearing took place remotely but, for reasons explained in the Case Management Summary for that hearing, the List of Issues was not finalised. A three-day Final Hearing had previously been listed in July 2024 and, although there was a concern that three days may not be enough to hear the case, this listing was left unchanged as it would not have been possible to add days to the listing without adjourning the hearing. Directions were made for the provision of further information from the Claimant and for an updated List of Issues from the Respondent in light of this further information.

[3]A Preliminary Hearing was listed on 16 July 2024 to hear a strike out application which had been made by the Respondent on the basis of alleged non-compliance by the Claimant with Tribunal orders and on the basis of the claim not being actively pursued. In the event, the Respondent did not pursue this application at the hearing as the Claimant had by that time provided all required information. The issues in the proceedings were discussed at that hearing and the Respondent thereafter filed a Final List of Issues which the parties agreed were the issues of determination at the Final Hearing which was relisted for five days on 24 to 28 November 2025.

[4]The Final Hearing was ultimately listed for four days, rather than five, on 25 to 28 November 2025 due to lack of judicial availability on 24 November 2025. The Tribunal heard from the following witnesses at the Final Hearing:a. On behalf of the Respondent: Ben Voller (Clinical Operations Manager at the time of the events below), Kirsten Willis-Drewett (Assistant Director of Operations -Thames Valley at the time of the events below); Sarah Thompson (Associate Director of Safeguarding – Mental Health and Complex Care at the time of the events below); Michael Murphy (Chief Strategy Officer) and Charlotte Carter (HR Manager at the time of the events below). They were all cross-examined by the Claimant; and

b. The Claimant, who was cross-examined by counsel for the Respondent.

[5]Following the completion of the Respondent’s evidence just before lunch on the second day, the Claimant told the Tribunal that he was expecting the Respondent to call Lisa Pickard, HR Business Manager. This was despite the fact that the witness statements had been exchanged in advance of the Final Hearing (with no statement provided by the Respondent for Ms Pickard) and the fact that the Tribunal had identified the above witnesses at the outset of the Final Hearing. After lunch, the Claimant told the Tribunal that he suffered from anxiety and that finding out that Ms Pickard was not being called as a witness was causing him such anxiety that he was unable to continue that afternoon. In the circumstances, the Tribunal adjourned the hearing to the following morning when the Claimant commenced his evidence. Both parties provided helpful detailed written submissions and the Respondent made oral submissions on the morning of the fourth day. The Tribunal then deliberated for the remainder of the fourth day.

FINDINGS OF FACT

[6]The Tribunal makes the following findings of fact on the chronology of events which are relevant to the issues between the parties. Where there was no dispute between the parties as to a particular fact, the findings are recorded below without further explanation. Where there was a dispute between the parties on the evidence, the Tribunal explains why it made its findings of fact. Allegations about Claimant’s Conduct Prior to Employment with Respondent

[7]In 2015, the Claimant was dismissed from his role as a volunteer in the Scout Association because of a safeguarding concern arising from his relations with a youth who was either 16 or 17 at the time, whom the Claimant had met on Facebook and offered lodging to. The Claimant accepted that he had been untruthful to the Scout Association about the youth when he had told them that the youth was his cousin when he was not.

[8]In 2017, the Claimant was dismissed from his role as a volunteer with the Marine Society and Sea Cadets (“MSSC”) for failure to disclose his dismissal from the Scout Association. Commencement of Employment with Respondent

[9]On 24 July 2017, the Claimant commenced employment with the Respondent as a Trainee Associate Ambulance Practitioner. Suspension in 2017, Return to Work Meeting in April 2018

[10]On 7 October 2017, the Claimant was suspended and investigated following an allegation that he had been accused of “criminal conduct outside work and [was] currently under investigation by West Midlands Police”. At a return to work meeting on 23 April 2018, the Claimant was told that the Respondent had received confirmation from West Midlands Police that the criminal investigation had been finalised and there were no charges being brought. This meeting was attended by Ms Pickard.

[11]In October 2019, the Claimant qualified as an Associate Ambulance Practitioner. Model Declaration Form

[12]On 6 December 2021, the Claimant completed a Model Declaration Form which was necessary for the assessment of suitability for NHS Roles. Question 6 of the Form asked “Have you ever been dismissed for misconduct from any employment, volunteering, office, or other position previously held by you, in circumstances which may have a bearing on your suitability for this position?”. Against this question in the Claimant’s form, the word “No” was ticked. The form goes on to say: “If you have ticked YES, please provide details of the employment, volunteering, office, or other position”. This section is blank on the form.

[13]The Claimant’s evidence to the Tribunal was that he had in fact declared on the form that he had been dismissed and that he would have referred to the Scout Association and the MSSC under the request for details. This is inexplicably inconsistent with the form and the Tribunal also notes that the Claimant did not assert in the disciplinary proceedings in 2023 that he had disclosed his previous dismissals on this form. The only plausible explanation is that he did in fact tick the word “No” on the form, knowing this to be untrue, in order to conceal his prior dismissals from the Scout Association and the MSSC and the Tribunal finds that this is what happened.

[14]The Claimant alleges in these proceedings that he had previously told the Respondent at the meeting of 23 April 2018 that he had been dismissed by the MSSC for the non-disclosure about his dismissal from the Scout Association. As the Claimant deliberately concealed this fact when completing the Model Declaration Form (and again when speaking to Mr Voller in his investigation interview as set out below), the Tribunal does not accept that he provided this information at the meeting of 23 April 2018. The Tribunal finds that the Claimant was hoping to conceal his prior dismissals from the Respondent.

[15]On 4 April 2022, the Claimant commenced in the role of Student Paramedic on Apprenticeship. ‘MM’ Allegations

[16]By an email of 26 July 2022, an individual identified to the Tribunal as ‘MM’, a Health Care Assistant at Stoke Mandeville Hospital, made allegations to the Respondent that the Claimant had sexually assaulted him and begun a course of harassment against ‘MM’ from April 2022 that was sexual in nature. Thames Valley Police Allegations

[17]On 29 July 2022, the Respondent was notified of an anonymous allegation to Thames Valley Police of sexual contact with a 15 year old boy. That evening, Ms Law and Amanda Joyce visited the Claimant’s home to notify him that he was being suspended.

[18]On 5 August 2022, an ‘Allegations against Staff and Volunteers’ (“ASV”) Meeting took place between Thames Valley Police, the Buckinghamshire Local Authority Designated Officer (“LADO”), Siobhan Law (the Claimant’s line manager), Kamila Sternak (HR Advisor) and Sue Walters (Interim Head of Safeguarding) to discuss the allegation above and set out an action plan. The action plan included the Respondent commencing a disciplinary investigation.

[19]On 14 October 2022, a further ASV meeting took place attended by the LADO, Ms Law, Ms Sternak, and Sarah Thompson. The note of the meeting states that the outcome, by a majority, was “Unsubstantiated there is insufficient evidence to either prove or disprove the allegation. The term therefore, does not imply guilt or innocence”. This information was provided by Mark Begley (Head of Operations) to Ms Law.

[20]By letter dated 17 October 2022, Ms Law told the Claimant that his suspension from all duties continued pending further investigation into allegations made against him.

[21]By email of 2 November 2022, Ms Sternak forwarded to Ms Law information that she had received from West Midlands Police about a “HISTORICAL ALLEGATION” that a man “HAS BEFRIENDED A MALE NAMED SHANE BARRY VIA A FACEBOOK ACCOUNT CALLED "FIRST FACEBOOK SCOUT GROUP" PRIOR TO MOVING INTO THE BIRMINGHAM AREA IN ORDER TO RESIDE WITH THE OFFENDER. DURING TIMES STATED [THE MAN] STATES HE WAS FORCED TO PERFORM SEXUAL ACTS (ORAL SEX) ON THE OFFENDER. POSITION OF TRUST ISSUE AS THE OFFENDER VOLUNTEERS AS A SCOUT LEADER”. The outcome was referred to as “Filed NFA (as advised to SCAS 18.04.18). No corroboration to the allegations, and undermining material held”.

[22]By email of 2 November 2022, Ms Thompson contacted the Scout Association and the MSSC to obtain information about the Claimant. By email of 7 November 2022, the safeguarding team at the Scout Association told the LADO that the Claimant’s role was closed in 2015 due to a safeguarding concern which had been reported to the Birmingham LADO. Investigation Process

[23]On 10 November 2022, the Respondent decided to commence an investigation about the Claimant‘s pattern of behaviours. In December 2022, Mr Voller was appointed to carry out the investigation into concerns which were identified as follows: “Is there evidence that Shane Barry has demonstrated a pattern of behaviour that has, or may compromise the safety of patients, staff and visitors? Is there evidence of cumulative concerns regarding Shane Barry, including unfounded or inconclusive allegations of abuse of a vulnerable adult/child, occurring during or outside the employment of the Trust? “Is there evidence of cumulative concerns regarding Shane Barry, including unfounded or inconclusive allegations that indicate that he is unsuitable to work with children/vulnerable adults? Is there evidence of cumulative concerns regarding Shane Barry, including unfounded or inconclusive allegations of grooming a vulnerable adult/child, occurring during or outside the employment of the Trust? Is there evidence that Shane Barry has demonstrated a pattern of behaviour that takes advantage of an individual/individuals' vulnerability and/or has caused upset or distress to that individual? Is there evidence that Shane Barry has used a social media platform in which to carry out inappropriate communications to staff members of the South Central Ambulance NHS Foundation Trust? Has Shane Barry demonstrated a pattern of behaviour that opposes the core values and behaviours of the South Central Ambulance NHS Foundation Trust? Has Shane Barry demonstrated a pattern of behaviour that breaches the Trust's Dignity at Work Policy? On the balance of probability, is there evidence of a pattern of behaviour and/or conduct regarding Shane Barry that is likely to give offence to staff, patients or visitors of South Central Ambulance Service NHS Foundation Trust? On the balance of probability, is there evidence of cumulative concerns regarding Shane Barry that are sufficiently serious, to damage the reputation of South Central Ambulance Service NHS Foundation Trust?”

[24]On 20 December 2022, Mr Voller conducted an investigation meeting with Ms Law. In this meeting, Ms Law told Mr Voller that she had become aware that a student paramedic in Milton Keynes, referred to as Student A, being made uncomfortable by the Claimant. She referred to Facebook messages between the Claimant and Student A which showed areas of concern. She also raised a concern about the Claimant inappropriately touching another student, referred to as ‘MH’, by flicking his nipple ring. Mr Voller spoke to Ms Thompson on 21 December 2022.

[25]On 3 January 2023, Mr Voller interviewed ‘MH’ who told him that the Claimant had made a comment about his nipple ring which had made him uncomfortable but there was no touching.

[26]On 20 January 2023, Mr Voller met with the Claimant (accompanied by his union representative) and discussed the allegations which had been made against him. He asked the Claimant if there was anything that the Respondent should be aware of, as he would be required to inform the Respondent of issues about his previous employment, whether paid or unpaid. The Claimant said that he had being doing some work for a hospital while suspended and there were no other issues that the Respondent should be aware of regarding previous paid or unpaid work. The Claimant said that the ‘MM’ allegations and the allegations of sex with a minor had been closed and that there was no further action regarding the 2017 allegation.

[27]On 20 January 2023, Mr Voller interviewed Student A who told Mr Voller that he had met the Claimant when working at a depot and the Claimant then contacted him on Facebook, having seen his name on his ID badge. Student A said that this was at a time when he was ‘not in the best’ place, explaining that he had been through a distressing incident which affected his mental health and was unhappy in his student accommodation. Mr Voller discussed with Student A various Facebook messages which the Claimant had sent to Student A, including the following:a. “Only way is to sell your body” (in order to be a paramedic) which Student A felt was overtly sexual, having been sent only two days after they had met;

b. “that's an interesting visual for 2.30 in the afternoon” which Student A understood to be a reference to a previous message about Student A getting out of the shower;

c. “Am I going to have to ride you hard to make sure you do things on time” which Student A felt was sexualised;

d. “I suspect there are lots of traumatised students” and asking to be added to Student A’s year WhatsApp Group which Student A took to be a potential effort to contact other students;

e. Asking Student A “are you out?” which Student A found to be intrusive from a work acquaintance;

f. Offering hugs which Student A felt was inappropriate from a work acquaintance;

g. “I'm sure it's a nice butt but not checked it out to say for sure yet” (after word ‘butty’ rather than ‘buddy’ typed in error) which made Student A uncomfortable;

h. “You can only drive [the Claimant’s car] in speedos” which made Student A uncomfortable;

i. “who is your ideal?” which Student A found intrusive from someone he barely knew;

j. “You’ve not had my magic fingers” when Student A said he had injured his back, which Student A found to be “creepy”, and a further offer of a massage;

k. “I did get a gaydar when I met you” which made Student A uncomfortable;

l. “is that an invitation?” when Student A wrote “Bugger” which Student A said was unwelcome and crude;

m. “spaghetti is not straight when wet” which Student A found to be upsetting as he understood it to refer to getting people drunk for sexual advantage;

n. “sexy” referring to an image of Student A;

o. “you look handsome in that uniform” after sending a photo of Student A;

p. “There is one cute lad who works for…. but I cannot get his name as he turns his ID card inside out” which Student A said was how the Claimant had obtained his name and added him on Facebook.

[28]Student A told Mr Voller that the Claimant was probably 20 years older than him, old enough to be his father, and he wondered if the Claimant was trying to capitalise on his state of mind. He said that there may be a sexual motive to the messages which he found to be lecherous.

[29]On 24 January 2023, Mr Voller provided an update about his investigation to Ms Thompson.

[30]On 3 March 2023, Mr Voller completed an investigation report to Mr Begley which appended the investigation terms of reference, the written complaints, the interview notes and the Facebook messages. Disciplinary Process

[31]By letter dated 28 April 2023, the Claimant was invited to a formal disciplinary hearing on 15 and 16 May 2023. The letter stated that Ms Willis-Drewett would chair the panel, assisted by Ms Thompson and Ms Pickard. The disciplinary allegations were the same as the allegations which were the subject of the investigation, as set out above. The Claimant was told that the allegations, if proven, could constitute gross misconduct and result in a sanction up to dismissal.

[32]The disciplinary hearing took place on 15 and 16 May 2023. The panel consisted of Ms Willis-Drewett, Ms Thompson and Ms Pickard. Mr Voller attended to present the management case. The Claimant attended, accompanied by his union representative, Tracy Jerrim. As there was no notetaker present, the hearing was simply recorded by Ms Willis-Drewett on her phone. As a result, the transcript is somewhat patchy with some passages missing or unclear. Moreover, it is not clear from the transcript who is speaking as every entry has only Ms Willis-Drewett’s name above it.

[33]The note records that someone (and it is not in dispute that this was in fact Ms Willis-Drewett) said “is this appropriate for a gentleman in his 40s… to be looking to share accommodation with somebody that is much younger”. Ms Willis-Drewett also asked Mr Voller and the Claimant what the phrase “spaghetti is not straight when wet” (which, as set out above, had been used by the Claimant in a message to Student A) meant.

[34]Following the hearing, the panel deliberated. By letter dated 23 May 2023, the panel set out Its decision. The ten allegations were upheld, in summary for the following reasons given in the letter. (1) Is there evidence that Shane Barry has demonstrated a pattern of behaviour that has, or may compromise the safety of patients, staff and visitors?

[35]The letter referred to the Claimant’s dismissal from the Scout Association, being placed under investigation in 2017 by West Midlands Police and the dismissal from the MSSC. (2) Is there evidence of cumulative concerns regarding Shane Barry, including unfounded or inconclusive allegations of abuse of a vulnerable adult/child, occurring during or outside the employment of the Trust?

[36]The letter referred to the dismissal from the Scout Association, being placed under investigation in 2017 by West Midlands Police, the dismissal from the MSSC and the Claimant describing “[his] relationship with a vulnerable young person as “them being [his] cousin”, which he admitted in the hearing was a false representation. (3) Is there evidence of cumulative concerns regarding Shane Barry, including unfounded or inconclusive allegations that indicate that he is unsuitable to work with children/vulnerable adults?

[37]The letter referred to the Claimant’s position of trust and access to adult and child patients who could be considered vulnerable. (4) Is there evidence of cumulative concerns regarding Shane Barry, including unfounded or inconclusive allegations of grooming a vulnerable adult/child, occurring during or outside the employment of the Trust?

[38]The letter referred to vulnerability factors present, including sexuality, isolation, homelessness, mental health and looked after children. (5) Is there evidence that Shane Barry has demonstrated a pattern of behaviour that takes advantage of an individual/individuals' vulnerability and/or has caused upset or distress to that individual?

[39]The letter referred to the profound impact on complainants, in particular Student A. (6) Is there evidence that Shane Barry has used a social media platform in which to carry out inappropriate communications to staff members of the South Central Ambulance NHS Foundation Trust?

[40]The letter cited “numerous references in relation to correspondence/groups and private messages”. (7) Has Shane Barry demonstrated a pattern of behaviour that opposes the core values and behaviours of the South Central Ambulance NHS Foundation Trust?

[41]The letter referred to the Claimant not considering the core values of teamwork, innovation, professionalism and care, giving the example of sexualised messages to Student A which were not reciprocated. (8) Has Shane Barry demonstrated a pattern of behaviour that breaches the Trust's Dignity at Work Policy?

[42]The letter stated that the Claimant’s behaviour fell below the required standard of a member of staff. (9) On the balance of probability, is there evidence of a pattern of behaviour and/or conduct regarding Shane Barry that is likely to give offence to staff, patients or visitors of South Central Ambulance Service NHS Foundation Trust?

[43]The letter again stated that the Claimant’s behaviour fell below the required standard of a member of staff. (10) On a balance of probability, is there evidence of cumulative concerns regarding Shane Barry that are sufficiently serious, to damage the reputation of the South Central Ambulance Service NHS Foundation Trust

[44]The letter stated that the Claimant’s behaviour fell below the required standard of a member of staff regarding the Respondent’s reputation, including with voluntary organisations, police, social media groups, university, private ambulance services, the local authority and other NHS organisations. The letter also referred to the Claimant’s carrying out secondary employment while on suspension from the Trust.

[45]Under the heading “Mitigation” the letter stated among other things that:a. The panel appreciated that the credibility of ‘MM’ could be questioned and concerns were raised by independent witnesses but it was taken into consideration that this person felt aggrieved enough to raise a complaint;

b. The Claimant had acknowledged and apologised for his actions “in relation to the feelings of Student A”;

c. The Claimant had stated that his intentions towards Student A were that of support;

d. The Claimant refuted the inference that his use of social media was done negatively and the groups he administered/moderated was in a position of support;

e. The Claimant had stated that he had raised his dismissals from voluntary organisations on commencement of his employment with the Respondent and there was no evidence of whether or not this was done.

[46]The letter stated that the decision of the panel was that the Claimant was: “summarily dismissed without notice on the grounds of gross misconduct, namely the following breaches: “Conduct likely to give offence to patients, other employees, visitors or the general public Sexual or racial harassment, as defined in the Trust’s Dignity at Work policy, of other employees, visitors, or members of the public”. Appeal Process

[47]By letter dated 6 June 2023, the Claimant appealed. Under the heading “Student A”, he alleged that instances of Student A making incorrect claims called into question Student A’s truthfulness and that the panel did not appear to have considered the potential for Student A being nervous or worried for other reasons. He further asserted that the panel appeared to have determined that there were “grooming behaviours” which was contrary to the evidence of the Claimant advising Student A to speak to others, which was not evidence of trying to isolate someone.

[48]Under the heading “MM”, the Claimant alleged that the fact that MM had made a complaint was sufficient in the panel’s eyes to confirm the Claimant’s guilt which was contrary to the Respondent’s policies of treating employees fairly.

[49]Under the heading “Other Organisations”, the Claimant further alleged that no evidence (minutes of meetings or application forms) had been provided to confirm his alleged failure to disclose information.

[50]The appeal hearing was originally arranged for 26 July 2023 but it was cancelled due to a bereavement suffered by one of the panel members. It was rearranged for 6 September 2023 but again had to be cancelled due to non-availability of a panel member. The appeal hearing was then held on 25 September 2023 via Teams. It was chaired by Michael Murphy (Chief Strategy Officer) and the other panel members were Nigel Chapman (Non-Executive Director) and Charlotte Carter (HR Manager). The Claimant attended but chose not to be accompanied. Ms Willis-Drewett also attended the hearing, supported by Ms Pickard. The Claimant presented his appeal and Ms Willis-Drewett responded.

[51]Following the appeal hearing, the panel deliberated and decided to uphold the decision to dismiss. By letter dated 25 September 2023, Mr Murphy set out the appeal panel’s decision that the grounds of appeal in relation to Student A and ‘MM’ were dismissed. In relation to the further ground of appeal, the panel found that there was no clear information about his permission to undertake additional employment but there was a question over the responsibility for ensuring that this was communicated effectively at the point of suspension. The ground of appeal was therefore partially upheld.

[52]The appeal outcome letter concluded by stating: “the appeal panel are satisfied that the original decision was fair and the original disciplinary panel thoroughly considered the outcome and decision. The appeal panel does not believe that any alternatives to dismissal such as redeployment were appropriate as the risk to patients, other staff and the public is too high given the repeated patterns of inappropriate behaviours”. RELEVANT LAW Unfair Dismissal

RELEVANT LAW

[53]Section 98(1) of the Employment Rights Act 1996 states that it is for a respondent to establish the reason, or principal reason, for the dismissal. A potentially fair reason is the conduct of the claimant. A fair dismissal may also be for ‘some other substantial reason’ (“SOSR”).

[54]If a potentially fair reason for dismissal is established, pursuant to section 98(4) of the Employment Rights Act, the Tribunal is to consider whether the respondent acted reasonably or unreasonably in treating the reason as sufficient reason for dismissing the claimant. In a misconduct dismissal, this requires consideration of whether the respondent had a genuine belief that the claimant was guilty of misconduct, whether there were reasonable grounds for this belief and whether it carried out as much investigation as was reasonable (BHS Ltd v Burchell

[1978] IRLR 389

EAT).

[55]The Tribunal must consider whether dismissal was within the range of reasonable responses for a reasonable employer (and it is not for the Tribunal to substitute its own decision as to whether it would have dismissed the claimant). The ‘range of reasonable responses’ test applies to the issue of whether the respondent followed a reasonable procedure, just as it does to the decision to dismiss itself (Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

CA).

[56]It may be fair to dismiss an employee for conduct which took place outside of the workplace if in some respect it affects or could be thought to affect the employee when he is doing his work for the respondent (Singh v London Country Bus Services Ltd

[1976] IRLR 176

[57]If a pattern of misconduct is relied on, the employer must identify each incident forming that pattern, put these to the employee and fairly consider them (Weddel & Co v Tepper

[1980] ICR 286

). An employer cannot rely on historical allegations that were not properly investigated or substantiated to construct a pattern of behaviour (A v B

[2003] IRLR 405

[58]Where ‘SOSR’ is relied on, the reason must be evidence-based (Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ 330

). Breakdown of trust and confidence is a potentially fair reason for dismissal but the breakdown must be substantial and evidenced, and not merely a convenient label for dissatisfaction with the employee (Perkin v St George’s Healthcare NHS Trust

[2006] EWCA Civ 143

[59]As stated in Leach v OFCOM

[2012] IRLR 839

CA, “The circumstances of dismissal differ from case to case. In order to decide the reason for dismissal and whether it is substantial and sufficient to justify dismissal the ET has to examine all the relevant circumstances”. In that case, the Court of Appeal held that: “it has to be recognised that there are cases where it is necessary for employers to be warned of facts which indicate that an employee (or potential employee) is a risk to children, even in the absence of any conviction”. In L v K

[2021] IRLR 790

, the Inner House of the Court of Session held that because there was a ‘real possibility’ that the claimant in that case was an offender, it was reasonable to dismiss him.

[60]Where HR’s role to advise on law and procedure strays into the decision-making of the disciplinary panel, this may cause or contribute to unfairness in the dismissal process (see e.g. St Albans Girls’ School v Neary

[2010] IRLR 124

). Direct Age and Sexual Orientation Discrimination

[61]Section 13(1) of the Equality Act 2010 states: “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”. Age and sexual orientation are protected characteristics.

[62]Section 13(2) of the Equality Act states: “If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim”.

[63]Section 23(1) of the Equality Act states: “On a comparison of cases for the purpose of section 13 … there must be no material difference between the circumstances relating to each case”.

[64]Section 39(2) of the Equality Act states: “An employer(a) (A) must not discriminate against an employee of A's

(b) (B) …

(d) by subjecting B to any other detriment”.

[65]Section 136 of the Equality Act states: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision”.

[66]As explained by the Court of Appeal in Igen Ltd v Wong

[2005] IRLR 258

, a claimant must first prove on the balance of probabilities facts from which the tribunal could conclude (in the absence of an adequate explanation) that the respondent has committed an act of unlawful discrimination. The burden of proof then passes to the respondent to prove that it did not commit that act, demonstrating on the balance of probabilities that the treatment was in no sense whatsoever because of the protected characteristic. However, the tribunal is not required to approach the question in two stages and may focus simply on the question of the reason for the treatment.

[67]In Madarassy v Nomura International plc

[2007] IRLR 246

, the Court of Appeal held that the bare facts of difference in status and difference in treatment are not, without more, sufficient material from which a tribunal could conclude that a respondent committed the act of discrimination.

[68]In Royal Mail Group Ltd v Efobi

[2021] UKSC 33

, the Supreme Court held that a tribunal may consider all the evidence from whichever party raises it when coming to the conclusion as to whether the burden has shifted. THE TRIBUNAL’S CONCLUSIONS

[69]The Tribunal sets out its conclusions below on the issues agreed between the parties in Final List of Issues. Unfair Dismissal (1) The Respondent admits that the Claimant was dismissed within the meaning of section 95(1)(a) of the ERA 1996 (i.e. the Respondent terminated the Claimant's contract of employment).

[70]It is not in dispute that the Claimant was dismissed on 23 May 2023. (2) The Respondent contends that the principal reason for the Claimant's dismissal is a reason relating to his conduct, which is a potentially fair reason for dismissal (section 98(2)(b) ERA 1996) or alternatively SOSR (section 98(1)(b) ERA 1996) namely because of the impact or possible impact of the Claimant's behaviours on the Trust's reputation and/or because the Claimant's behaviour undermined the relationship of trust and confidence between the Trust and Claimant so extensively as to cause an irretrievable breakdown of the relationship and, further, or in the alternative because the Claimant's behaviour fell so far short of the behaviours expected by the Trust and by the HCPC of any member of staff but particularly an aspirant Paramedic whose role was to look after some of the most vulnerable people within the healthcare system. The conclusion stated in the dismissal letter was that the Claimant was (emphasis added) ““summarily dismissed without notice on the grounds of gross misconduct, namely the following breaches”: Conduct likely to give offence to patients, other employees, visitors or the general public Sexual or racial harassment, as defined in the Trust’s Dignity Work policy, of other employees, visitors, or members of the public”.

[71]The Tribunal concludes that the Claimant was dismissed by the Respondent as a result of the following matters:a. First and foremost, inappropriate conduct towards Student A, in particular by Facebook messages, which Student A had found to be distressing. This was referred to in the dismissal letter under Allegations 4, 5 and 7. As explained by Ms Willis-Drewett in evidence, the panel found that the Facebook exchanges were “highly inappropriate and sexualised” and the Claimant had “sought to take advantage of Student A’s vulnerable state at the time of the messages” and this conduct was sufficient to justify dismissal in itself;

b. His dismissal in 2015 from his role as a volunteer in the Scout Association in relation to a safeguarding concern arising from his relations with a youth who was either 16 or 17 at the time whom the Claimant had met on Facebook which had not been disclosed to the Respondent. This is referred to in the dismissal letter under Allegations 1 and 2 and is cross-referenced under Allegation 3. As stated in the dismissal letter under allegation 2, the Claimant had described the vulnerable young person as his cousin which was false;

c. His dismissal in 2017 from his role as a volunteer with the MSSC because of his failure to disclose his dismissal from the Scout Association, which had not been disclosed to the Respondent. Again, this is referred to in the dismissal letter under Allegations 1 and 2 and is cross-referenced under Allegation 3;

d. Undertaking additional work while on suspension. This is referred to under Allegation 10 in the dismissal letter. Ms Thompson explained in evidence the Respondent’s concern that the Claimant would have continued to access to vulnerable people, including children, despite being on suspension from the Respondent for conduct including abuse of vulnerable adults/children.

[72]Another factual matter referred to in the dismissal letter was the Claimant’s involvement in Facebook groups, including Plastic Paramedics and Falsely Accused UK, which gave advice for which there was no governance or qualified subject-matter experience, which the Claimant confirmed at the hearing. The matter which was of particular concern to the Respondent in relation to social media however was the Claimant’s use of social media to contact vulnerable people, such as the youth he had offered lodging to and had untruthfully told the Scout Association in 2015 was his cousin, and also Studenta. A. This was evidenced by the Claimant’s Facebook message to Student A that “There is one cute lad who works for…. but I cannot get his name as he turns his ID card inside out”, which: a. Student A said was the means by which the Claimant had obtained his name to link with him on Facebook; and

b. The Claimant told the disciplinary panel he could not recall the context of.

[73]As for the allegations by ‘MM’ of sexual assault and sexual harassment, Ms WillisDrewett told the Tribunal that “in the absence of cogent evidence either by way of witnesses or CCTV footage to corroborate the allegations and having noted that MM did not engage further with the police investigation into the allegations, we considered it prudent to take into account Mr Barry’s mitigation that the allegations may have been made out of revenge following Mr Barry’s submitting a statement to MM’s place of work with regards to MM falsifying his nursing status”. Although the word ‘mitigation’ is used, as Ms Willis-Drewett explained to the Tribunal, what she meant is that the allegation was treated as not proven.

[74]Although the dismissal letter of 23 May 2023 states that the panel took into consideration the fact that ‘MM’ “felt aggrieved enough to raise a complaint” , this did not have a material bearing on the disciplinary decision. This is consistent with the evidence of Ms Willis-Drewett that “Whilst the outcome letter references that we took into consideration that MM felt aggrieved enough to raise a complaint, I want to be clear that the complaint by MM was not considered in isolation; on its own, it was highly unlikely to result in Mr Barry’s termination of employment because as alluded to in the outcome letter, the panel took into account that MM’s credibility could be questioned”.

[75]Similarly, although the panel expressed concern about the sexual assault allegation made by a young person against the Claimant in 2017 which did not lead to charges being brought by West Midlands Police, this was not proved as an act of misconduct and did not have a material bearing on the disciplinary decision.

[76]In the circumstances, the Tribunal concludes that the Respondent’s principal reason for dismissing the Claimant was conduct.

[77]It does not consider that the reason is ‘SOSR’, first because the reason is not accurately characterised as a breakdown of trust and confidence. Further, the impact or possible impact of the Claimant's behaviours on the Trust's reputation was not a freestanding reason for dismissal which was separate to consideration of the Claimant’s conduct, although concerns about safeguarding were relevant to the Respondent’s consideration of sanction (as explained further below). Further, this was not a case, such as that of Leach, where the nature of the Claimant’s role meant that unproven allegations were considered to be a potentially fair principal reason for dismissal.

[78]As set out above, although concerns about unproven allegations were also referred to in the dismissal letter, the evidence shows that the principal reason for dismissal was conduct which was found by the Respondent to have taken place. This was the pattern of behaviour that was referred to in the dismissal letter and which the dismissal letter stated was the reason that the Claimant’s employment was terminated when it referred to dismissal for “misconduct”, “breaches”, “conduct” and “harassment”.

[79]Therefore, the correct approach to considering the fairness or otherwise of the dismissal is that set out in BHS v Burchell. (3) Was the Claimant's dismissal fair and reasonable in all the circumstances within the meaning of section 98(4) ERA 1996? Genuine Belief

[80]The Tribunal concludes that the Respondent had a genuine belief in the misconduct found to have occurred, in particular the misconduct referred to in paragraph 71 above. The evidence of Ms Willis-Drewett and Ms Thompson demonstrates that they were deeply concerned about these matters. Reasonable Grounds

[81]This belief was based on reasonable grounds. There was no dispute that the Claimant had been dismissed in 2015 from his role as a volunteer in the Scout Association in relation to a safeguarding concern arising from his relations with a vulnerable child and that the Claimant had described him as his cousin.

[82]It was also not in dispute that he had been dismissed in 2017 from his role as a volunteer with the MSSC because of his failure to disclose his dismissal from the Scout Association.

[83]Although there was a dispute between the parties as to whether the Claimant had disclosed his prior dismissals to the Respondent and no record was found at the time of whether he had disclosed this, there were reasonable grounds for believing that he had not disclosed this. As Ms Willis-Drewett told the Tribunal, the panel noted that Mr Voller had asked the Claimant at the investigation meeting if there was anything that the Trust should be aware of about his previous employment, whether paid or unpaid and the Claimant told him that there were not. Thus, there were reasonable grounds for disbelieving the Claimant’s assertion that he had mentioned this at the 23 April 2018 meeting.

[84]There were also reasonable grounds for finding that there was inappropriate conduct towards a vulnerable person, Student A, which were (to use Ms WillisDrewett’s words) “highly inappropriate and sexualised”, based on the Facebook messages (and the sexualised nature of the Claimant’s comments was not reciprocated by Student A)

[85]It was also accepted that the Claimant had undertaken additional work while on suspension.

[86]The Tribunal addresses next three agreed issues in a slightly different order to the Final List of Issues: it considers first the specific allegations made by the Claimant about the fairness of the process (Issue 6), then the fairness of the process more generally (Issue 5) and lastly the decision to dismiss itself (Issue 4). (6) The Claimant makes a number of challenges to the fairness of his dismissal, which are set out below. The Tribunal is asked to determine the extent to which any of the Claimant's challenges have any basis and, if so, whether they render the Claimant's dismissal unfair in all the circumstances of the case (6.1) Did the Respondent fail to carry out a fair investigation because: (6.1.1) it did not contain supporting evidence in relation to some or all of its content and deliberately took statements out of context

[87]The allegations of unfairness at paragraphs 6.1.1 to 6.1.4 of the agreed list of issues concern Mr Voller’s investigative report. Before considering these, the Tribunal notes that:a. The purpose of the investigation was to decide whether the Claimant should face disciplinary proceedings (not whether the Claimant was guilty of misconduct and what sanction should be applied);

b. A disciplinary process (including a disciplinary hearing) followed the investigation, at which the Claimant was given the opportunity to answer the allegations.

[88]The Claimant alleges that findings in the report were taken out of context or lacked evidential support. In relation to Student A, he alleges in particular that the investigation focused on selective extracts of communications and did not fully consider the Claimant’s legitimate explanation of context. The Tribunal concludes that the panel considered the communications that Student A had said that he was uncomfortable about and considered the explanations provided by the Claimant. Their findings were not taken out of context and were supported by the Facebook messages themselves.

[89]As for the non-disclosure about previous dismissals, the Claimant alleges that there were no minutes for the 23 April 2018 meeting and there was no contemporaneous record of the alleged failure to disclose. The Claimant was given the opportunity to comment on the previous dismissals at the disciplinary hearing and the panel gave fair consideration to his assertion at the hearing that he had been told at a return to work meeting that information from the police, including information relation to the Scout Association and the MSSC would be locked away, which he took to mean that the Respondent was aware of his dismissal. The dismissal letter noted that there was no contemporaneous record of these matters.

[90]The Claimant also relies on what he describes as speculative assertions being included in the investigative reasoning, such as Student A no longer being at university. However, there are no relevant assertions which give rise to any unfairness and the question of whether Student A was still at university had no substantial bearing on the alleged misconduct and the disciplinary outcome.

[91]In all the circumstances, the Tribunal does not accept the Claimant’s submission that the investigation was selective, assumption-driven or incomplete or that any unfairness arises from the matters relied on by the Claimant under this heading. (6.1.2) it contained information which the investigator later found to be unfounded

[92]The Tribunal does not accept that there was information in the report that was shown to be unfounded. The Claimant asserts that for example that there were “assertions of reputational risk where no external complaint, regulatory concern or media interest was evidenced” but these things are not required for there to be reputational risk. He relies on such matters to assert that there were no reasonable grounds for the Respondent’s belief in the misconduct but, as set out above, Mr Voller was only the investigator, it was not his decision to dismiss the Claimant. (6.1.3) the investigator did not gather evidence, but instead asked "a few questions" and provided "conjecture" and there was no evidence provided by the investigator to substantiate the majority of the investigation report

[93]Mr Voller carried out an investigation in which he interviewed the Claimant and the relevant complainants among others. He plainly did gather evidence and did not just ask “a few questions” and he relied on the available evidence when writing his report.

[94]Evidence was set out by him to substantiate the majority of his report, contrary to the Claimant’s assertion. The Claimant again relies on the absence of a minute of the 23 April 2018 meeting and the lack of contemporaneous records. Mr Voller considered the evidence that was available to him. Where there was a lack of evidence to support an allegation about the Claimant’s behaviour, such as allegedly touching the nipple ring of ‘MH’, this was made clear. No unfairness arises from his approach to the evidence. Again, he was not the decision-maker. (6.1.4) the investigator provided information to the panel during the course of the disciplinary hearing about Student A no longer being a student at the University; that was irrelevant; had no evidential basis and that a "negative conjecture was intended" from this comment

[95]As stated in paragraph 6.1.4 of the Final List of Issues itself, the question of whether or not Student A was still a student at the university was irrelevant. There was no negative conjecture which arose from this and it did not affect the decision of the panel. No unfairness arises from this. (6.2) Did the Respondent fail to give the Claimant a fair hearing because the panel hearing the Claimant's disciplinary case: (6.2.1) was biased against the Claimant as it ignored the evidence he submitted; questioned the Claimant's personal relationships and made clear its dislike of social media

[96]The Claimant alleges that the disciplinary panel did not evaluate evidence about whether he had previously disclosed his prior dismissals from the Scout Association and the MSSC. The Tribunal does not accept this, the evidence about this issue, including the Claimant’s own case, was evaluated by the panel.

[97]The Respondent did not “make clear its dislike of social media”, as the Claimant alleges. The disciplinary panel’s concerns arose from the way it was being used by the Claimant, for example:a. Using Facebook to contact the youth whom he pretended to the Scout Association was his cousin;

b. Obtaining names of student paramedics from name badges and contacting them on social media; as well as

c. Being involved in Facebook groups, including Plastic Paramedics and Falsely Accused UK which gave advice for which there was no governance or qualified subject-matter experience.

[98]In the circumstances, the Tribunal finds that the Respondent was not biased toward the Claimant and that its assessment of the evidence before it was reasonable. (6.2.2) made assumptions about "LGBT situations" without having an open mind

[99]The Claimant alleges that the disciplinary panel’s treatment of the phrase “spaghetti is not straight when wet”, suggests that assumptions were made about LGBT-related language and its significance. At the hearing, Ms Willis-Drewett simply asked Mr Voller and the Claimant what the phrase meant, as it had been used by the Claimant in a Facebook message to Student A. By asking this question, she was not suggesting that the phrase was intrinsically problematic, she simply wished to understand what it meant. No unfairness arises from this. (6.2.3) made up Trust policy by stating that it was inappropriate for a staff member to have a relationship with anyone outside of the workplace

[100]The Respondent did not say or in any way suggest that it was inappropriate for a staff member to have a relationship with anyone outside of the workplace. What it found was that the specific sexualised behaviour of the Claimant towards a vulnerable person (Student A), as evidenced in the Facebook messages, was inappropriate. (6.2.4) ignored evidence by not giving appropriate weight to any evidence it heard or saw that MM had made false allegations against the Claimant?

[101]For the reasons set out at paragraphs 73 and 74 above, the Tribunal finds that the Respondent did not ignore evidence by not giving appropriate weight to evidence that ‘MM’ had made false allegations. (6.2.5) failed to make a decision "on balance of probabilities"

[102]For the reasons explained above, the Tribunal finds that the Respondent did make its decision on the balance of probabilities in relation to the conduct which was the principal reason for the Claimant’s dismissal.

[103]The Tribunal concludes in light of the matters set out above that the investigation and disciplinary process was within the band of reasonable responses. (6.2.6) allowed its decision making in relation to the Claimant to be influenced by CQC findings regarding the recording of data?

[104]The Claimant asserts that the decision-making was influenced by a negative Care Quality Commission Report in August 2022 criticising the Respondent’s culture and governance, even though that report did not concern the Claimant personally. However, there is no evidence of this and the Tribunal does not accept that the decision was influenced by the Care Quality Commission. It was based on the information before the Respondent about the Claimant’s own conduct. (5) Did the Respondent follow a fair procedure in reaching its decision to dismiss the Claimant?

[105]First, the Tribunal concludes that Mr Voller carried out a reasonable investigation into the matters that he was tasked to investigate as set out in his terms of reference.

[106]As for the disciplinary process itself, the Tribunal noted that the disciplinary allegations in the letter of 28 April 2023 were not set out as specific factual matters, i.e. they do not identify the precise behaviours of the Claimant that were being considered as disciplinary matters, e.g. there is no reference to the Scouting Association, the MSSC, Student A or ‘MM’. The disciplinary allegations simply repeat the broad category of allegation that Mr Voller was asked to investigate. Despite this:a. The Claimant and his union representative at no time suggested that they did not understand what was being alleged against the Claimant;

b. It was clear in particular from the disciplinary hearing itself what factual matters were being considered and the Claimant was given a fair opportunity to respond to these.

[107]Although the letter of 28 April 2023 inviting the Claimant to the disciplinary hearing stated that the panel was being “chaired” by Ms Willis-Drewett who would be “assisted” by Ms Thompson and Mr Pickard, as Ms Willis-Drewett and Ms Thompson made clear in evidence, the panel consisted of all three of them. This was how the Claimant understood the panel had been constituted and there was no objection to this. This was not a case of the type referred to in Neary where an HR function whose role it was to provide advice strayed into a decisionmaking role. It was intended that Ms Pickard would be a decision-maker at the disciplinary hearing, along with Ms Willis-Drewett and Ms Thompson.

[108]The Claimant also criticises the “undisclosed prior involvement of the HR Business Partner, Ms Pickard”, alleging that this “calls into question her impartiality”. This is a reference to Ms Pickard having been involved in the return to work meeting with the Claimant on 23 April 2018. The Claimant of course knew at the time of the meeting that Ms Pickard was present although it appears that he had forgotten this by the time of the disciplinary hearing (and the issue of her prior involvement was not raised by the Claimant).

[109]The Tribunal does not consider that Mrs Pickard’s presence at a return to work from suspension meeting in 2018 gives rise to any unfairness. She was not for example a decision maker in relation to the suspension in 2017/2018 (the Claimant describes her simply as a “co-ordinating individual”) and the facts and matters that had led to the earlier suspension were part of the materials before all three members of the disciplinary panel. In the event, there was a factual dispute about what had happened at the return to work meeting on 23 April 2018 but Ms Pickard was not treated as a witness in relation to this.

[110]In the circumstances, the Tribunal does not consider that Ms Pickard’s limited prior involvement with the Claimant in her HR role calls into question her impartiality, as the Claimant alleges.

[111]The Claimant was given the right of appeal, which he exercised, following which he attended an appeal hearing. His grounds of appeal were considered and determined by the appeal panel. The Claimant makes no complaint about the appeal process and the Tribunal finds that it was reasonable and fair. (4) Did the Respondent act reasonably in treating the reason for dismissal as a sufficient reason for dismissal and did the decision to dismiss the Claimant fall within the range of reasonable responses? The Respondent asserts that it did

[112]Although the Claimant had apologised for Student A’s feelings arising from his actions, the Tribunal accept that he demonstrated a lack of insight into his behaviour and had sought to justify it. The Respondent had a justified concern that the type of behaviour he had carried out towards Student A might be repeated, in particular given his previous behaviour in relation to the young person he had met on Facebook and who he had untruthfully told the Scout Association was his cousin.

[113]As a healthcare professional, he would be in contact with vulnerable people and the Respondent took the reasonable view, in light of the evidence, that he would be, as Ms Willis-Drewett put it in her evidence, “a significant risk to patients”. The panel therefore had reasonable concerns in relation to safeguarding (and the reputational issue referred to in the dismissal letter arose mainly out of the safeguarding concerns).

[114]The Tribunal concludes in light of these factors that the decision to dismiss the Claimant was within the range of reasonable responses for a reasonable employer. Contributory Fault and Polkey

[115]Even if the Tribunal had found that the dismissal was unfair, it would have made a 100% reduction to any compensatory award pursuant to section 123(6) of the Employment Rights Act 1996 as a result of the Claimant’s contributory fault, i.e. his inappropriate behaviour towards Student A, who was a vulnerable person, taken with his dismissals from the Scout Association and the MSSC and his conduct which led to those dismissals, which had not been disclosed to the Respondent. It would also have reduced any basic award to zero pursuant to section 122(2) of the Employment Rights Act on the ground of this conduct.

[116]It would also have made a 100% reduction to any compensatory award on Polkey grounds as the Tribunal would have found that the Respondent would have dismissed him for these conduct matters when it did, given the seriousness of the Claimant’s misconduct which raised serious safeguarding issues which the Respondent could not be confident would not arise again, in particular given the Claimant’s attempts to justify his conduct. Age Discrimination (7) The Claimant describes his age bracket as “40s”. He compares himself to someone under age 30.

[117]The Tribunal notes the Claimant’s position on Issue 7. (8) Did the Respondent do the following things: (8.1) During the disciplinary hearing, the panel chair, Kirsten Willis-Drewett made a comment that it was “inappropriate for someone in their 40s to be friends with someone in their 20s” (8.2) Dismissed the Claimant

[118]As recorded in the transcript, Ms Willis-Drewett stated “is this appropriate for a gentleman in his 40s… to be looking to share accommodation with somebody that is much younger”. That is to say, it was a question rather than an assertion, and she was asking about sharing accommodation, rather than being friends, with someone in their 20s (Student A being in his early 20s). Thus, the factual basis of this allegation of age discrimination has not been proved.

[119]As set out above, it is not in dispute that the Claimant was dismissed. (9) Was that less favourable treatment? (10) If so, was it because of age? (11) If there was less favourable treatment of the Claimant because of age, can the Respondent show that its treatment of the Claimant was a proportionate means of achieving a legitimate aim pursuant to section 13(2), EqA 2010? (12) The Claimant relies on an actual comparator, Matthew Wood, who was formerly employed by the Respondent as an Emergency Care Assistant. Ms Willis-Drewett’s Question

[120]What Ms Willis-Drewett said, which again was a question rather than an assertion, was said in order to help the Claimant see how his behaviours might be perceived, including in the context of his previously having offered lodgings to a child in 2015 and Student A having complained about the Claimant’s inappropriate behaviour. The question does not engage any Trust policy and was not used to cast suspicion on the Claimant’s conduct, as he alleges. In these circumstances, the Tribunal does not find that what was in fact said amounts to unfavourable treatment. It is therefore unnecessary to consider whether the question was asked because of the Claimant’s age although the Tribunal would have accepted that it was asked in some sense because of the Claimant’s age. However, the Tribunal would also have found that the question was justified for the purpose of helping the Claimant to see how his behaviours might be perceived. Dismissal

[121]The Claimant’s comparator, Matthew Wood, was an Emergency Care Assistant who was the subject of a disciplinary hearing on 5 August 2021, when he was 24, for sending unwanted communications to female employees of the Respondent. Charlotte Carter was a member of the disciplinary panel. By letter dated 9 August 2021, Mr Wood was given a final written warning (rather than be dismissed).

[122]There were no concerns about safeguarding or about previous roles, such as having been dismissed from volunteer roles as the Claimant had been. Mr Wood also accepted responsibility for his actions and showed insight into why his conduct was inappropriate. The Respondent was confident that his behaviour would not happen again. Although the Claimant apologised for his actions “in relation to the feelings of Student A”, he also challenged the truthfulness of Student A’s account and sought to justify his own behaviour - which the panel considered to be grooming – for example as being supportive of Student A, and the Claimant did not show sufficient insight for the Respondent to have confidence that such behaviour would not happen again.

[123]Therefore, while there were serious allegations against Mr Wood, he was in a materially different position to the Claimant.

[124]The Claimant’s dismissal was unfavourable treatment; however, the Tribunal finds that the dismissal was in no sense whatsoever because of the Claimant’s age. The Claimant was dismissed solely because of the misconduct that the Respondent found had taken place, as explained above. Sexual Orientation Discrimination (13) Did the Respondent do the following things: (13.1) The disciplinary panel chair, Kirsten Willis-Drewett, asked managers outside of the panel what the phrase "spaghetti is not straight when wet" meant (13.2) The disciplinary panel chair asked the Claimant about the phrase "spaghetti is not straight when wet" in an accusatory manner (13.3) Dismissed the Claimant

[125]It is not in dispute that Ms Willis-Drewett asked Mr Voller and the Claimant at the disciplinary meeting what the phrase “spaghetti is not straight when wet” meant. The Claimant accepted in cross-examination at the Final Hearing that she had not asked him about this in an accusatory way.

[126]Again, it is not in dispute that the Claimant was dismissed. (14) Was this less favourable treatment? (15) If so, was it because of sexual orientation? (16) The Claimant compares himself to an actual comparator, a paramedic, Stuart Hall, engaged by the Respondent and Matthew Wood who was formerly employed by the Respondent as an Emergency Care Assistant. Ms Willis-Drewett’s Question

[127]The phrase “spaghetti is not straight when wet” had been used by the Claimant in his Facebook messages with Student A. Ms Willis-Drewett asked what it meant because she did not know what it meant and wanted to understand this. This was entirely proper and did not amount to less favourable treatment. The question was not in any event asked in any sense whatsoever because of sexual orientation but simply in order to understand the phrase. Dismissal

[128]The first comparator, Stuart Hall, was a Clinical Team Educator who was subject to a disciplinary hearing on 18 November 2024, which was chaired by Ms WillisDrewett, in particular for inappropriate messages and conduct to two members of staff and inappropriate use of social media. He was given a final warning by letter dated 20 November 2024, with a new role and a personal development plan.

[129]As Ms Willis-Drewett explained to the Tribunal, there was no evidence of safeguarding concerns or grooming (which is consistent with the letter of 20 November 2024 which states that the concerns about Mr Hall “cannot be established as safeguarding concerns”) and the panel did not have the same level of concern about Mr Hall posing a risk to the Respondent, its patients and staff. There were no safeguarding concerns about previous roles, such as having been dismissed from volunteer roles as the Claimant had been.

[130]Further, Mr Hall recognised his behaviours fell below the required Trust standards and he showed a willingness to change these, sharing the fact that he had been attending counselling sessions which had helped him understand his behaviours. As explained above, the Claimant challenged Student A’s account and sought to justify his actions to Student A and the Tribunal accepts that he did not show sufficient insight for the Respondent to be confident that such behaviour would not happen again.

[131]For these reasons, while the allegations against Mr Hall were again serious, he was in a materially different position to the Claimant. The other comparator, Mr Wood, was in a materially different position to the Claimant for the reasons explained above.

[132]The Tribunal finds that the dismissal was in no sense whatsoever because of the Claimant’s sexual orientation. As stated above, the Claimant was dismissed solely because of the misconduct that was found to have taken place.

[133]In the circumstances, the Claimant was not subjected to direct discrimination because of his age or sexual orientation.